Nash v Glennies Creek Coal Management Pty Ltd (No 7)
[2014] NSWIC 5
•28 November 2014
Industrial Court
New South Wales
Case Title: Nash v Glennies Creek Coal Management Pty Ltd (No 7) Medium Neutral Citation: [2014] NSWIC 5 Hearing Date(s): 31 October 2014 Decision Date: 28 November 2014 Before: Boland AJ Decision: The Court makes the following directions:
(1) The parties have seven days from the date of this judgment in which to file short minutes of order reflecting the effect of this judgment on my orders in Nash No 2.
(2) The defendants shall file and serve written submissions on costs within seven days of the date of this judgment. The Department and the prosecutor have a further seven days in which to reply. Unless a party wishes to be heard orally the question of costs will be dealt with on the papers.
Catchwords: REFERENCE - Reference of questions of law to Full Bench pursuant to s 196 of Industrial Relations Act 1996 and s 5AE of Criminal Appeal Act 1912 - Full Bench provided answers to stated case - Obligation on Court to apply answers to orders made by the Court in interlocutory proceedings in circumstances where defendants contended Full Bench answers wrong and of no assistance to Court - Doctrine of precedence - Ratio decidendi - PUBLIC INTEREST IMMUNITY - Whether documents in respect of which public interest immunity claimed should be disclosed Legislation Cited: Coal Mine Health and Safety Act 2002
Coal Mine Health and Safety Amendment (Validation) Bill 2013
Criminal Appeal Act 1912
Evidence Act 1995
Industrial Relations Act 1996
Occupational Health and Safety Act 2000
Petroleum (Onshore) Amendment Bill 2013Cases Cited: Amalgamated Television Services v Marsden [1999] NSWCA 313
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
Director General, Department of Trade and Investment, Regional Infrastructure and Services v Glennies Creek Coal Management Pty Ltd [2013] NSWCA 371
Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160
Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395
Inspector Green v The Crown in Right of the State of New South Wales (Department of Commerce) [2006] NSWIRComm 368; (2006) 158 IR 227
Inspector Wolf v Rockdale Beef Pty Ltd [2006] NSWIRComm 280; (2006) 155 IR 36
Inspector Wolf v Rockdale Beef Pty Ltd (No 2) [2006] NSWIRComm 365
Mid-City Skin Cancer & Laser Centre Pty Ltd v Zahedi-Anarak [2006] NSWSC 844; (2006) 67 NSWLR 569
Mitchforce v Industrial Relations Commission of New South Wales (2003) 124 IR 79
Mitchforce v Starkey [2002] NSWIRComm 85; (2002) 117 IR 122
Mitchforce Pty Ltd v Starkey (No.2) [2003] NSWIRComm 458; (2003) 130 IR 378
Nash v Glennies Creek Coal Management Pty Ltd (No 2) (2013) 237 IR 283; [2013] NSWIRComm 67
Nash v Glennies Creek Coal Management Pty Ltd (No 3) (2013) 237 IR 340; [2013] NSWIRComm 72
Nash v Glennies Creek Coal Management Pty Ltd (No 4) (2013) 237 IR 355; [2013] NSWIRComm 80
Nash v Glennies Creek Coal Management Pty Ltd (No 5) (2013) 237 IR 400; [2013] NSWIRComm 99
Nash v Glennies Creek Coal Management Pty Ltd (No 6) [2014] NSWIRComm 36
Pivotel Satellite Pty Ltd v Optus Mobile Pty Ltd [2010] FCA 121
Undershaft (No 1) Ltd v Federal Commissioner of Taxation [2009] FCA 41; (2009) 175 FCR 150
R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598
R v Madden (1996) 95 A Crim R 367
Robinson v Woolworths [2005] NSWCCA 426; (2005) 64 NSWLR 612
Starkey v Mitchforce Pty Ltd [2000] NSWIRComm 216; (2000) 101 IR 177
Talay v R [2010] NSWCCA 308
Taylor v Environment Protection Authority (2000) 50 NSWLR 48; [2000] NSWCCA 71
Viro v R [1978] HCA 9; (1978) 141 CLR 88Texts Cited: C K Allen, Law in the Making, 1951, 7th ed, Oxford University Press
Hansard, Legislative Assembly, 30 October 2013, 25059
R Cross, Precedent in English Law, 1968, 2nd ed, Clarendon PressCategory: Interlocutory applications Parties: Director General, Department of Trade and Investment, Regional Infrastructure and Services (Applicant on the Motion)
Jennifer Anne Nash (Prosecutor in the substantive proceedings)
Glennies Creek Coal Management Pty Ltd and Integra Coal Operations Pty Ltd (Respondents on the Motion/Defendants in the substantive proceedings)Representation - Counsel: S Odgers SC with M Kumar of counsel (Applicant on the Motion)
J Agius SC with C Magee of counsel (Prosecutor in the substantive proceedings)
A Moses SC (Respondents on the Motion/Defendants in the substantive proceedings)- Solicitors: I V Knight, Crown Solicitor's Office (Applicant and Prosecutor)
Ashurst Australia Lawyers (Respondents)File Number(s): IRC 315 and 316 of 2011
JUDGMENT
In Nash v Glennies Creek Coal Management Pty Ltd (No 4) [2013] NSWIRComm 80; (2013) 237 IR 355 ("Nash No 4"), I referred six questions to the Full Bench of the Court as part of a stated case pursuant to s 196 of the Industrial Relations Act 1996 ("IR Act") and s 5AE of the Criminal Appeal Act 1912 ("CA Act"). In Nash v Glennies Creek Coal Management Pty Ltd (No 5) [2013] NSWIRComm 99; (2013) 237 IR 400 ("Nash No 5"), I amended the stated case in Nash No 4 by adding one additional question. The questions were sought to be referred jointly by the Director General, Department of Trade and Investment, Regional Infrastructure and Services ("the Department") and the prosecutor, Jennifer Nash ("the prosecutor").
The questions referred to the Full Bench in the stated case related to my judgment in Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67; (2013) 237 IR 283 ("Nash No 2"). That judgment determined Notices of Motion filed by the Department seeking to set aside Summonses and Notices to Produce on grounds including that the Summonses and Notices sought documents which were the subject of a claim for public interest immunity and/or client legal privilege.
The background to the litigation is explained in Nash No 2 at [15]-[27]. Essentially, the defendants were seeking to discover whether the originally named prosecutor, Mr Regan, an officer of the Department, was validly appointed and had the necessary authority under the Coal Mine Health and Safety Act 2002 ("CMHS Act") to institute proceedings against the defendants under the Occupational Health and Safety Act 2000 ("OHS Act").
The defendant's interest in Mr Regan's appointment was triggered by a bill in the Parliament, the Petroleum (Onshore) Amendment Bill 2013, which purportedly sought to retrospectively validate certain appointments, including the appointment of Mr Regan. The defendants were also seeking production of certain documents to understand if Ms Nash, who was substituted for Mr Regan as prosecutor, was aware of the need to legislate to retrospectively cure an invalid appointment and did not disclose this to the defendants. If that were the case, the defendants were proposing to contend that a question of abuse of process had arisen providing grounds to permanently stay the proceedings.
The Department, joined by the prosecutor, strenuously resisted all of the defendants' efforts to obtain the information sought.
In determining the Notices of Motion filed by the Department, the Court made orders that included the following:
(2) The claims by the Department of public interest immunity and client legal privilege are disallowed in respect of any statement made in Confidential exhibits MP-A to MP-D inclusive and any statement or statements made in a document referred to in JMM-1 directed to:
(a) any alleged defect in, or the validity of, the instrument of appointment, under the Coal Mine Health and Safety Act 2002 dated 22 December 2006, published in the NSW Government Gazette No 5 of 12 January 2007 at page 102;
(b) clause 2.1 of Schedule 2 of the Petroleum (On-Shore) Amendment Bill 2013, which concerns the proposed amendment to the Coal Mine Health and Safety Act 2002 by the insertion of a new clause 25A.
The questions referred to the Full Bench were in the following terms:
(i) Did I err in law in holding that an assertion that a state of mind was formed after the receipt of legal advice, in response to a request to provide information as to when that state of mind was formed, could put in issue that state of mind for the purposes of s122 Evidence Act and the common law relating to waiver of legal professional privilege and thereby waive privilege in respect of that advice (see Nash No 2, paragraphs [123], [125], [170] - [171])?
(ii) Did I err in law in holding that a prosecutor's assertion in correspondence with a defendant, that she formed a particular state of mind with regard to an issue in the proceedings on the basis of legal advice, could put in issue that state of mind for the purposes of s 122 Evidence Act and the common law relating to waiver of legal professional privilege and thereby waive privilege in respect of that advice (see Nash No 2, paragraphs [170] - [171])?
(iii) Did I err in deciding the claim of public interest immunity by failing to determine whether, taking into account the contents of each document in respect of which a claim was made, each document was crucial to, or at least important for, the proper determination of the proceedings (see Nash No 2, paragraph [79], [82], [90])?
(iv) Was I required as a matter of law to give reasons for finding that, taking into account the contents of each document in respect of which a claim was made, each document was crucial to the proper determination of the proceedings?
(v) Was it open to me as a matter of law to find that, taking into account the contents of each document in respect of which I disallowed the claim of public interest immunity, all of those documents were crucial to the proper determination of the proceedings?
(vi) Was it open to me as a matter of law to allow the claim of public interest immunity with respect to Confidential Exhibits MP-A and MP-B only in relation to those documents or pages of documents marked "Cabinet in Confidence" (see Nash No 2, paragraph [90])?
(vii) Was it open to me to find that, by reason of the letter of 12 July 2013, there was disclosure of the substance of legal advice received by the prosecutor for the purposes of s 122 Evidence Act 1995 and the common law?
In Nash v Glennies Creek Coal Management Pty Ltd (No 6) [2014] NSWIRComm 36 ("Nash No 6"), the Full Bench handed down its decision in which it remitted the matters to me with the following answers to the questions referred:
Question (i): yes;
Question (ii): yes;
Question (iii): yes;
Question (iv): not necessary to answer;
Question (v): not appropriate to answer;
Question (vi): not appropriate to answer;
Question (vii): no.
As the defendants submitted, it now falls to me to consider my findings and orders in Nash No 2 in light of the answers to the questions that have been provided by the Full Bench in Nash No 6.
Defendants' submissions
In Nash No 6 the Full Bench declined to issue any order which requires this Court to deal with the remitter to it in a particular fashion. Instead, the Full Bench at [138] adopted the course I referred to at [36] in Nash No 2, namely:
[36] If the Full Bench were to find that I had committed error that would be a material change in circumstances providing the basis for the orders I had made to be set aside or varied.
The course I referred to was based on the premise that the orders I had made in Nash No 2 were interlocutory orders in respect of which I had the power to set aside or vary in appropriate circumstances. One of those circumstances was a material change in circumstances: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46 per McLelland J, approved by the Court of Appeal in Amalgamated Television Services v Marsden [1999] NSWCA 313 at [38]; Pivotel Satellite Pty Ltd v Optus Mobile Pty Ltd [2010] FCA 121 at [26].
The defendants seemed to accept that if there had been a material change in circumstances it was open to this Court to vary or set aside the interlocutory orders made in Nash No 2. However, the defendants submitted that in considering my findings and orders in Nash No 2, and what impact the answers to the questions of law provided by the Full Bench in Nash No 6 may have on those findings and orders, it was open to me to consider whether the questions as formulated by the Department and prosecutor actually reflected and, therefore, had any bearing upon, my reasoning in Nash No 2 in respect of client legal privilege and public interest immunity.
In this regard, the defendants noted that the Department and prosecutor prepared the relevant questions, and not the Court, which referred the questions to the Full Bench because it considered it was required to do so under s 5AE of the CA Act: see Nash No 4 at [9]-[10]. It was then submitted that:
The Court should be independently satisfied that the answers given by the Full Bench have any bearing upon the analysis of the Court in respect of waiver of client legal privilege and public interest immunity in Nash No 2. If not, it is open to the Court to consider that there has been no material change in circumstances requiring the findings and orders in Nash No 2 to be either varied or set aside.
The defendants submitted the same proposition in a different way based on what I said in Nash No 5, namely, that the purpose of referring questions of law under s 5AE of the CA Act was to obtain advice from the Full Bench that would "assist" the Court in determining how the matter should be disposed of (see Nash No 5 at [23]; see also R v Madden (1996) 95 A Crim R 367 at 370). The defendants submitted that if the answers provided by the Full Bench in Nash No 6 did not "assist" the Court in disposing of the matters in Nash No 2, then the findings and orders in Nash No 2 should not be varied or set aside.
Client legal privilege
Disclosure waiver
The defendants submitted that in considering the answers provided by the Full Bench the Court is required to consider, inter alia, whether in respect of question (vii) and disclosure waiver:
(a)whether any assistance is provided to the Court by the answer to the question which infers that the Court made an inference about disclosure of the substance of legal advice, when the Court considers that it drew no such inference (see Nash No 4 at [17]; see also see also Further Submissions of the Defendants in Nash No 4 filed 12 September 2013 (Defendant's Nash No 4 Submissions) at paragraph 3.1(b), on a similarly worded question proposed in those proceedings);
(b)whether, in any event, the Full Bench has adequately considered the case law concerning the permissibility of drawing inferences in considering disclosure waiver, noting that the Full Bench in Nash No 6 does not consider:
(i)the authority of Adelaide Steamship Co Ltd v Spalvins (1998) 81 FCR 360 which is a clear example involving an inference being drawn that statements made in an affidavit amounted to the substance or gist of legal advice being disclosed;
(ii)the acceptance by this Court that such inferences are capable of being drawn in making findings in respect of the "content", "substance" or "gist" of the advice being disclosed (see John Cahill v State of New South Wales (Department of Community Services) [2007] NSWIRComm 1 at [52] per Boland J; Truckbug Pty Limited & Anor v Rethmann Australia Environmental Services Pty Limited & Ors [2007] NSWIRComm 272 at [8] per Backman J); and
(iii)the authority of Fenwick v Wambo Coal Pty Ltd (No.2) [2011] NSWSC 353 at [12] that disclosure may arise from an "implied" summary of the legal advice;
(a)and to which authorities the Full Bench were directed by the Defendants in the proceedings in Nash No 6;
(c)whether the Full Bench has had due regard to the words "as a result of", which are used throughout the letter of 12 July 2013, in determining whether there has been a waiver of legal professional privilege;
(d)further to (iii), whether the analysis of the Full Bench in Nash No 6 at [65] has properly understood and analysed the point being raised.
Issue waiver
In respect of questions (i) and (ii) and issue waiver, the defendants submitted:
(a)whether any assistance is provided to the Court by the answer to question (i) which infers that the Court has made an "assertion that a state of mind was formed", when it is clear from Nash No 2 that the Court found that Ms Nash had herself "asserted" her state of mind (see Nash No 2 at [170] - [171]; see also Nash No 4 at [32] - [33]; Defendant's Nash No 4 Submissions at paragraph 3.3);
(b)whether the Full Bench has properly considered:
(i)whether there has been a "deployment" of legal advice by the Prosecutor, noting that such deployment includes "for the purpose of explaining or justifying the client's actions" (Mann v Carnell (1999) 201 CLR 1 at [34];
(ii)"inconsistency" in the conduct of the Prosecutor and the maintenance of privilege, having regard to Nash No 2 at [156] and [160] (see also section 122(2), Evidence Act 1995 (NSW); Mann v Carnell (1999) 201 CLR 1 at [28] - [29]; Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 [32]; Cooper v Hobbs [2013] NSWCA 70 per McColl JA (Meagher JA and Bergin CJ in Eq agreeing) at [71] - [73];
(iii)whether it would be unfair for the Prosecutor to now claim legal professional privilege in respect of the relevant communications (noting that "fairness" remains a relevant matter for consideration) (see Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 [31]; see also Singapore Airlines v Sydney Airports Corporation & Anor [2004] NSWSC 380 McDougall J; Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 at 168 per Branson and Lehane JJ).
Public Interest Immunity
As the defendants submitted, question (iii) is concerned with whether I erred in deciding the claim of public interest immunity by failing to determine whether, taking into account the contents of each document in respect of which a claim was made, each document was crucial to, or at least very important for, the proper determination of the proceedings. The defendants further submitted:
The analysis of the Full Bench rests on the basis that the Court determined that the documents were "crucial" prior to inspecting the documents. In particular: at [129] the Full Bench states:
[129] We have found that Boland J fell into error by reason of the finding that the documentation was "important" and "crucial" in the proceedings which was made before the documentation was inspected. Question (iii) should be answered, "yes".
With the greatest respect to the Full Bench, it is not clear how it came to form that view.
It is also important to note that the Full Bench made the findings it did at [128] of Nash No 6 based upon the assumption that the Court inspected the documents only after it considered that they were "crucial".
The assumption which underpins question (iii) and the answer given by the Full Bench in Nash No 6, is clearly contrary to the statements of the Court that it decided to inspect the documents (at [58]) and then made findings through the judgment, after having conducted the balancing exercise in respect of the documents: see Nash No 2 at [86] and Nash No 4 at [46].
The Court as currently constituted is able to assess for itself whether this is the correct analysis of the steps which the Court did take in determining the question of public interest immunity. If the assumption which underpins question (iii) and the answer given to it (which is based upon the same assumption) is not correct, this means that the answer to the question has no impact on this Court discharging its function in respect of the orders made in Nash No 2.
The Department has noted in its submissions that it wishes to make submissions on the importance of eleven documents which, on its analysis, are the only documents which are necessary for the Court to examine in light of the answers provided by the Full Bench in Nash No 6.
The Defendants object to such leave being given. The matter has been remitted to the Court for the purpose of considering whether the answers provided to it in Nash No 6 provide a material change in circumstances which warrant the findings and orders in Nash No 2 to be varied or set aside, or not. The matter has not been remitted for the purpose of conducting a rehearing. The Department had an opportunity to make submissions on its claim for public interest immunity in respect of all documents over which such claims were made in the proceedings in Nash No 2. It took that opportunity at that time. There is no basis upon which the Department ought now be provided a further opportunity to re litigate that question in respect of specific documents.
Costs
The Department and the prosecutor each sought an order for their costs in respect of Nash No 2, Nash No 4 and Nash No 5 on the basis that the questions had been answered in the Department's favour and that costs should follow the event. The Department and the prosecutor also sought costs of the present proceedings.
The defendant's position regarding costs was as follows:
(1)The Defendants oppose the application to vary the order for costs in Nash No 2, and the application to make any order as to the costs of the present proceedings. Further, any such orders should not be made by the Court until it has:
(a)determined whether the orders in Nash No 2 ought to be varied or set aside, or not, in light of the answers provided to the Court by the Full Bench in Nash No 6;
(b)if necessary, reviewed and reconsidered the claims for client legal privilege and public interests immunity in respect of specific documents in respect of the Summons to Produce Document issued on 10 July 2013.
(2)In respect of Nash No 4 and Nash No 5, the Court ordered that costs be reserved. In respect of the application for costs, it is noted that:
(a)The Department has not set out any proper basis to vary or set aside the orders made in Nash No 4 and Nash No 5 that costs be reserved;
(b)The Department was successful only in part in Nash No 4, with six of nine questions being referred to the Full Bench (noting that Nash No 4 was litigated after the wholly unsuccessful attempt in Nash v Glennies Creek Coal Management Pty Ltd (No 3) [2013] NSWIRComm 72; (2013) 237 IR 340 ("Nash No 3") to have two questions of law referred to a Full Bench);
(c)The Court was largely unassisted by the Department, at least initially, in its application in Nash No 4;
(d)The Department was successful only in part in Nash No 5, with one of the three questions being referred to the Full Bench (the Department initially appeared to put forward three questions as "alternatives", but later only pressed one of the three alternatives), with Nash No 5 being litigated after an unsuccessful attempt to seek prerogative relief from the Court of Appeal in respect of Nash No 4 (see Director General, Department of Trade and Investment, Regional Infrastructure and Services v Glennies Creek Coal Management Pty Ltd [2013] NSWCA 371);
(e)While it is accepted that the Court has power under s 181 of the IR Act to order costs in the proceedings, it has determined that costs be reserved. In that case, the costs of Nash No 4 and Nash No 5 would ordinarily become part of the costs in the cause, when determined and ordered.
(f)There has been no material change in circumstances to vary or set aside those orders, in accordance with the principles in Brimaud, Amalgamated Television Services and Pivotel Satellite. In respect of costs, merely because answers have now been provided to the questions referred to the Full Bench, does not provide a material change in circumstances in respect of the proceedings in Nash No 4 and Nash No 5 which concerned whether the questions were proper questions of law to be referred under section 5AE of the CA Act, and not with the actual answers provided to those proposed questions. The answer to the questions themselves does not impact in any way upon the question of whether the questions ought to have been referred.
(g)In respect of the proceedings in Nash No 4 and Nash No 5, it is apposite to refer to the statement of the Court in Nash No 3:
"[9]... It was not for the defendants to identify any flaws in the questions and for the Department and prosecutor to then attempt to remedy the flaws: it is the Department and the prosecutor that wish me to refer the questions and it is their responsibility to properly assist the Court in ensuring that the questions are indeed questions of law, which are capable of producing answers that must have some utility in assisting me in finally disposing of the matter."
(h)That the Defendants sought to assist the Court in respect of dealing with the applications to refer questions of law in Nash No 4 and Nash No 5, primarily in respect of whether the questions were questions of law, does not mean that the Defendants have acted unreasonably and ought to have costs awarded against them. The Court would need to be satisfied that there were special reasons to award costs against the Defendants in respect of Nash No 4 and Nash No 5 (see Taylor v Environment Protection Authority [2000] NSWCCA 71; (2000) 50 NSWLR 48 at [37] - [47] Sperling J (Meagher JA and James J agreeing); although note Inspector Wolf v Rockdale Beef Pty Ltd (No 2) [2006] NSWIRComm 365; (2006) 157 IR 435 at [16]).
(3)The application for costs in Nash No 4 and Nash No 5 is unmeritorious. The orders in Nash No 4 and Nash No 5 should be maintained by the Court. The question of costs in those proceedings can be dealt with at the conclusion of the substantive proceedings.
Submissions for Department
Client legal privilege
In relation to client legal privilege, the Department's position essentially was that given I had previously accepted that I had the power to amend or vary interlocutory orders in appropriate circumstances and that the answers provided by the Full Bench in Nash No 6 constituted appropriate circumstances, I should now act in accordance with those answers by making the following orders:
(i) Orders 2 - 8 made on 13 August 2013 in Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 be set aside.
(ii) The claims of client legal privilege made by the Director-General of the Department of Trade and Investment, Regional Infrastructure and Services ("the Department") in respect of documents referred to in JMM-1 (exhibit to affidavit of Ms Moore filed on 2 August 2013) be upheld.
(iii) The Department be excused from producing any document that is properly the subject of a claim of client legal privilege in respect of documents referred to in JMM-1 (exhibit to affidavit of Ms Moore filed on 2 August 2013).
The Department submitted that the answers given by the Full Bench do assist me in disposing of the Department's Notice of Motion:
Questions of law under s 5AE are referred by a single judge to seek the opinion of a superior court for its assistance on an identified question of law arising in the proceedings. Once the superior court has provided its opinion, the single judge who sought the advice determines the matter in accordance with that opinion (Young v Campbell (1948) 49 SR (NSW) 103 at 104-105 per Jordan CJ (Street & Maxwell JJ agreeing); Budget Nursery Pty Ltd v Commissioner of Taxation (Cth) (1989) 42 A Crim R 81 at 82 per Hunt J (Grove & Allen JJ agreeing); Frost v Amaca Pty Ltd (2004) 61 NSWLR 159 at [19] per Mason P (Beazley & Ipp JJA agreeing); Wolf v Rockdale Beef Pty Ltd (2006) 155 IR 366... at [50]; Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd [2004] NSWCCA 439; (2004) 137 LGERA 289... at [36].
The Department further submitted that a stated case is a limited form of appeal that enables a party aggrieved by a ruling to move a superior court for correction of that ruling by the superior court giving advice on specified questions relevant to the ultimate determination of the proceeding: Talay v R [2010] NSWCCA 308 at [12]. It was submitted that the stated case is "a form of interlocutory appeal against the disclosure rulings": Director General, Department of Trade and Investment, Regional Infrastructure and Services v Glennies Creek Coal Management Pty Ltd [2013] NSWCA 371 at [8]. The Court, it was submitted, could also reconsider its reasons: Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 per Kirby P at 165 -166.
The Department also sought to remind the Court that fidelity to the orders of a superior court is the essence of the rule of law: Amalgamated Television Services at [36]. Of course, in the present circumstances, the Full Bench in Nash No 6 made no orders requiring fidelity.
Public interest immunity
The Department took the same approach to the question of public interest immunity, that is, I should now act in accordance with the answers provided by the Full Bench in Nash No 6 by making the following orders:
(i) The Department's claims of public interest immunity be upheld in respect of documents in Confidential exhibits MP-A to MP-D (excluding those documents referred to in JMM-1) directed to:
(a) any alleged defect in, or the validity of, the instrument of appointment, under the Coal Mine Health and Safety Act 2002 dated 22 December 2006, published in the NSW Government Gazette No 5 of 12 January 2007 at page 102;
(b) clause 2.1 of Schedule 2 of the Petroleum (On-Shore) Amendment Bill 2013, which concerns the proposed amendment to the Coal Mine Health and Safety Act 2002 by the insertion of a new clause 25A.
(ii) The Department be excused from producing any document that is properly the subject of a claim of public interest immunity in respect of documents in Confidential exhibits MP-A to MP-D (excluding those documents referred to in JMM-1) directed to:
(a) any alleged defect in, or the validity of, the instrument of appointment, under the Coal Mine Health and Safety Act 2002 dated 22 December 2006, published in the NSW Government Gazette No 5 of 12 January 2007 at page 102;
(b) clause 2.1 of Schedule 2 of the Petroleum (On-Shore) Amendment Bill 2013, which concerns the proposed amendment to the Coal Mine Health and Safety Act 2002 by the insertion of a new clause 25A.
(iii) The Respondents shall pay the Department's costs in respect of the motions to make its client legal privilege and public interest immunity claims (Nash 2) and also for the applications for a stated case (Nash 4 and Nash 5 but not the costs of Nash 3).
(iv) Noted that in Nash v Glennies Creek Coal Management Pty Ltd (No 2) [2013] NSWIRComm 67 the Court upheld the Department's claims of public interest immunity in respect of documents in Confidential exhibits MP-E to MP-F.
The Full Bench decided that I erred in law in deciding the claim of public interest immunity by failing to determine whether, taking into account the contents of each document in respect of which a claim was made, each document was crucial to, or at least important for, the proper determination of the proceedings: see Nash No 6 at [126].
The Department submitted that he effect of the Full Bench's answer to question (iii) meant that I was required to inspect each document and assess the public interest immunity claims by considering whether the public interest in disclosure outweighs the public interest in preserving secrecy or confidentiality. It was submitted the approach in State of New South Wales v Public Transport Ticketing Corporation [2011] NSWCA 60 showed that the correct approach was to assess the importance of each document to determine whether the balance was in favour of disclosure or non-disclosure. It was further submitted the factors in s 130(5)(a)-(f) of the Evidence Act 1995 were to be applied to each and every document to undertake the balancing exercise in s 130(1). The Court was also required to provide adequate reasons for its findings in respect of s 130(1) and the considerations listed in s 130(5).
The Department identified 11 documents that remain for the Court's determination under s 130 (MP-C 14, 15, 16, 17 and MP-D 8, 10, 11, 12, 13, 14, 15).
Costs
The Department sought costs in respect of the Motions to make its client legal privilege and public interest immunity claims (Nash No 2) and also for the applications for a stated case (Nash No 4 and Nash No 5 but not the costs of Nash No 3). It also sought costs of these further proceedings in respect of the consideration of the effect of Nash No 6 on the orders made in Nash No 2. The Department:
[M]akes application that costs of Nash No 4 and Nash No 5 now be determined due to its success before the Full Bench and the anticipated finalisation of the Department's role in the proceedings. The material change in circumstances (Nash No 6) is the basis for the Department seeking variation of the orders that costs be reserved. Costs should not be left to the end of the Defendants' criminal trial, where the Department is not a party. The Defendant's reference to the requirement for "special reasons to award costs" is misconceived. Such a test has been applied in respect of a costs application made before the superior court determining the stated case. The cases cited by the Defendants (Taylor v EPA and Inspector Wolf v Rockdale Beef) concern applications for costs from the superior court that heard the stated case. The Department is not applying for costs from the superior court. It is noted that the Defendants could have consented to the referral of questions but rather they elected to vigorously contest the applications for referral in Nash No 4 and Nash No 5. Costs should follow the event, and the Department should be awarded the costs of Nash No 4 and Nash No 5.
Prosecutor's submissions
The prosecutor adopted the submissions of the Department. Additionally, the prosecutor sought costs in relation to Nash No 4 and Nash No 5 and that the question of such costs should not be left to be dealt with at the conclusion of the substantive proceedings.
It was further submitted that the Court did not need to be satisfied that there were special reasons to award costs against the defendants in Nash No 4 and Nash No 5: Robinson v Woolworths [2005] NSWCCA 426; (2005) 64 NSWLR 612 at [59] per Basten JA; Inspector Green v The Crown in Right of the State of New South Wales (Department of Commerce) [2006] NSWIRComm 368; (2006) 158 IR 227 at [24]-[31].
In his oral submissions Mr Agius SC, for the prosecutor, made further submissions on the obligations of this Court to observe and apply the answers to the stated case provided by the Full Bench in Nash No 6:
The stated case was not an appeal in the sense that it did not seek to have the matter ultimately determined and in that sense it was not an appeal. Questions of guilt or otherwise were not before the Full Bench and nor would it ever be on the question of a stated case. It was always a question of what orders would follow from rulings on law made in the stated case. In that sense it can be said that it is not an appeal.
However, in relation to the questions of law involved, it is an appeal. It is an appeal and as a matter of law your Honour is bound to apply the law as found by the Full Bench. That is a question of law itself. It would follow from that, that much of what my friend has said about whether your Honour should in effect review the decision of the Full Bench, if your Honour were to follow that, your Honour would be led into error. That does not mean that your Honour should not apply the law to the issues, to the task that is at hand now, which is to fashion orders in consequence of those answers as found by the Full Bench.
Consideration
It is noteworthy that neither the Department nor the prosecutor sought to come to terms in any meaningful way with the submissions put by senior counsel for the defendants that the Full Bench, for the reasons submitted, was wrong in the answers it gave to questions (i), (ii), (iii) and (vii) of the stated case. The position of the Department and the prosecutor was simply that I am bound to accept the answers as correct. This is exemplified in the oral submissions of Mr Agius SC cited above and of Mr Odgers SC for the Department when he said:
Your Honour should reconsider the orders in the light of the advice and accepting the legal correctness of the advice given by the Full Bench. We say that a stated case procedure as created by statute, that the consequence of that procedure is that a judge who submits questions of law and receives answers from the Full Bench is essentially required to accept the correctness of those answers given to those questions of law.
On that basis your Honour effectively must conclude that it was not reasonably open to find that there was waiver of privilege in this case either on the basis of disclosure or on the basis of issue waiver. I won't restate what we said and what is in the written submissions. Your Honour should reject any suggestion that somehow the Full Bench got it wrong or misunderstood the law or misapplied the law. That is not a course that your Honour should contemplate.
In the result, I do not know whether the Department and the prosecutor believe the Full Bench was right or wrong in its analysis of the legal issues. But, of course, they would say it does not matter if the Full Bench was wrong at law because I am required to accept the answers provided on their face.
Section 5AE of the CA Act was applied by s 196 (since repealed) of the IR Act. Section 196 had the effect of applying the CA Act to any appeal and reference to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission, as it applied to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction. Section 5AE provides:
5AE Point of law stated during summary proceedings
(1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction, the Industrial Relations Commission in Court Session in its summary jurisdiction, the District Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.
(2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit.
There can be no doubt that in the hierarchy, the Full Bench of the Industrial Court sits above a single judicial member of that Court. According to the doctrine of precedent every court is bound to follow a case decided by the court above it in the hierarchy of courts: Viro v R [1978] HCA 9; (1978) 141 CLR 88 at 120 per Gibbs J citing R Cross, Precedent in English Law, 1968, 2nd ed, Oxford University Press at 6; and C K Allen, Law in the Making, 1951, 7th ed, Oxford University Press at 363. The doctrine only applies to the ratio decidendi of a case and not to obiter dicta: Garcia v National Australia Bank Ltd [1998] HCA 48; (1998) 194 CLR 395 at [56] per Kirby J, The ratio decidendi is to be found in the expressed reasons for the decision of the court: Garcia at [56] per Kirby J; Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 at [79] per McHugh J.
In Mid-City Skin Cancer & Laser Centre Pty Ltd v Zahedi-Anarak [2006] NSWSC 844; (2006) 67 NSWLR 569, Campbell J stated at [300]-[301]:
[300] The doctrine of precedent is one whereby every court is bound to follow the ratio decidendi of any case decided by a court above it in the judicial hierarchy (Cross and Harris, Precedent in English Law, 4th edition, 1991, p 6; Lockhart, "The Doctrine of Precedent - Today and Tomorrow" (1987) 3 Aust Bar Rev 1 at 11; MacAdam & Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (Butterworths, 1998) p 66)....
[301] There is no room for doubting the obligation of a judge of first instance loyally to follow decisions of any court which is above the first instance judge in the appellate hierarchy, even if the judge of first instance thinks that decision is wrong: eg Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 177. The same applies if the judge of first instance thinks the decision is contrary to a trend of authority that has since developed in other appellate decisions: Jacob v Utah Construction and Engineering Pty Ltd (1966) 116 CLR 200 at 207; Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 403, [17]....
It is true that the Full Bench in Nash No 6 made no binding orders or directions that might have left no doubt about my obligations to implement the answers provided. However, I am bound to follow the ratio decidendi of the case decided by the Full Bench regardless of whether I think it was wrong. That ratio of the Full Bench in relation to questions (i), (ii), (iii) had the effect in each case of leading the Full Bench to the conclusion that I had erred and, in relation to question (vii), that it was not open to me to find that, by reason of the letter of 12 July 2013, there was disclosure of the substance of legal advice received by the prosecutor for the purposes of s 122 of the Evidence Act 1995 and the common law.
Mr Moses SC for the defendants drew my attention to my dissenting judgment in Mitchforce Pty Ltd v Starkey (No.2) [2003] NSWIRComm 458; (2003) 130 IR 378 ("Mitchforce"). In that case I declined to accept the invitation of the Court of Appeal to revisit an earlier decision of the Full Bench of the Industrial Court (Mitchforce v Starkey [2002] NSWIRComm 85; (2002) 117 IR 122) refusing leave to appeal from a decision of Hungerford J in Starkey v Mitchforce Pty Ltd [2000] NSWIRComm 216; (2000) 101 IR 177.
The Court of Appeal had concluded that it was unable, by virtue of s 179 of the IR Act, to grant the substantial prerogative relief to the appellant in these proceedings: see Mitchforce v Industrial Relations Commission of New South Wales (2003) 124 IR 79. The Court of appeal concluded, after the application of the "Hickman" tests (see R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 at 614 - 615) and by referring to the expression "purported decision" in s 179, that s 179 extended the jurisdiction of the Commission in Court Session into areas not otherwise within its jurisdiction. In doing so, the Court relevantly refused to issue prerogative remedies against the decision of the Full Bench.
However, as the majority (Wright J, President, Walton J, Vice-President) in Mitchforce observed at [3]:
[3] That s 179 of the Act operated so as to largely deny prerogative relief was the ratio of the Court of Appeal's decision. The issue of the privative provision in s 179 therefore arose as the majority of the Court of Appeal had otherwise concluded that the jurisdictional limitations on the operation of s 106 of the Industrial Relations Act had been exceeded by the trial judge and that the Full Bench had been in error in concluding that the trial judge had not so erred (see the discussion in the judgment of the Chief Justice at [4] - [59]). The President of the Court also made some observations on the reach of the Commission's jurisdiction, although with some unusual vigour. We emphasise, however, that the Court of Appeal's comments on the jurisdictional limitation in s 106 were purely obiter (as was indeed recognised by Mason P who characterised his own "profound" disagreement with the trial judge's conclusions as "irrelevant" at [143]).
[4] It should be noted that an issue of the constitutional validity of s 179 was raised in the Court of Appeal. Their Honours, however, left that issue in abeyance, considering it unnecessary to decide that point unless this Court failed to follow the reasons of the majority in light of the further deliberations in this Court. Their Honours effectively invited the Full Bench of this Court to reconsider its decision to refuse leave to appeal: see per Mason P at [149] - [151] where his Honour stated:
[149] Subject to one matter, I am therefore driven to grapple with the constitutional issue about the valid scope of s179. It is however well established that such issues should be avoided unless and until necessary to do so. It is not necessary, at least not yet. That is because internal appellate rights within the Commission have not yet been exhausted. The Full Bench has not heard and determined an appeal from the decision of Hungerford J. It has refused leave, but such decision is interlocutory. It is open to be (sic) Full Bench to revisit the matter. I would respectfully invite it to do so in light of the reasons in this Court if leave is sought afresh by the present claimant. The Full Bench refused leave to appeal on the basis that the law was well settled, see 117 IR 122 at 135 [36]. It perceived no jurisdictional problem with orders 11 and 12 and consequently saw no need to consider the impact of excising those orders from the package of relief granted by Hungerford J. Implicitly, the Full Bench was also not of the opinion that the matter was of such importance that, in the public interest, leave should be granted (cf s188 (2)). The matters raised in the reasons of the Chief Justice and myself demonstrate, I trust, why I profoundly disagree with the Commission on these matters.
[150] I propose the quashing of orders 11 and 12 made by Hungerford J on 14 November 2000 and the standing over of the balance of the summons for further argument in light of the majority reasons in this Court and the further steps (if any) taken in the Commission.
[151] The constitutional issues are serious, as are the consequences of any prolonged uncertainty about the true scope of the Commission's jurisdiction with respect to commercial contracts that do not by their terms or direct effect require the performance of work in an industry. Only if the Full Bench of the Commission remains of the view that it has jurisdiction to vary or avoid such commercial contracts will it be the occasion for the vexing constitutional issues touching the respective roles of the Commission, this Court and the High Court to be addressed.
Spigelman CJ stated at [133]:
[133] For the reasons advanced by Mason P, these difficult issues do not necessarily arise. The Full Bench refused leave. As his Honour indicates, the Commission is able to consider the position in the light of the reasons of this Court. It may also be the case that, in view of this Court's decision with respect to orders 11 and 12, a commercial resolution of the dispute is now feasible.
In Mitchforce, the majority determined to follow the Court of Appeal:
37 Having balanced those considerations, and notwithstanding some real misgivings arising from the obligations which appear to be imposed on us by the terms of s 179 of the Industrial Relations Act, and our differences of opinion in relation to issues of law, we have come to the conclusion that, as a matter of comity, we should follow the decision of the Court of Appeal insofar as it relates to the first of the jurisdictional propositions stated earlier. We have reached this view only because we consider that upon reassessment there is insufficient foundation (after a review of the facts) for a clear affirmative answer to the first jurisdictional proposition to warrant us forming a different view to that expressed by the majority in the Court of Appeal. In short, we are unable to find in accordance with the authorities on comity that the decision of the Court of Appeal as to the first jurisdictional proposition is plainly wrong even upon our differing view of the law. As will be later discussed, this opinion does not vary when the second jurisdictional proposition is factored into our deliberations.
In my dissenting judgment I disagreed with the majority's conclusions regarding the jurisdictional question and the issue of comity. At [252]-[254] I stated:
[252] In normal circumstances there would be no question of following any judgment of the Court of Appeal in its supervisory jurisdiction. These proceedings, however, are highly unusual. As presently advised, s179 is a valid enactment with the consequence that the Commission is the final arbiter of its jurisdiction. To uphold the appeal based on observations by a majority in the Court of Appeal, would amount to a constructive circumvention of s 179. I consider that such a course is inappropriate, particularly in circumstances where I regard observations made by the majority regarding jurisdiction as inconsistent with High Court authority and wrong.
[253] I would also observe that in making the invitation to the Commission to revisit its decision to refuse leave to appeal, there could have been no expectation on the part of the majority on the Court of Appeal that the Commission would, inevitably, uphold the appeal either on the basis of the Commission accepting it was wrong in refusing leave based on the majority's observations, or on the basis that the majority was wrong but in the interests of judicial comity the appeal should be upheld. As Mason P said at [150] and [151]:
[150] I propose the quashing of orders 11 and 12 made by Hungerford J on 14 November 2000 and the standing over of the balance of the summons for further argument in light of the majority reasons in this Court and the further steps (if any) taken in the Commission.
[151] ... Only if the Full Bench of the Commission remains of the view that it has jurisdiction to vary or avoid such commercial contracts will it be the occasion for the vexing constitutional issues touching the respective roles of the Commission, this Court and the High Court to be addressed.
In this respect, Spigelman CJ agreed with the approach proposed by Mason P.
[254] The other important reason for declining to adopt the views of the majority in the Court of Appeal is that I am firmly of the view that the judgment of Hungerford J should not be overturned. In essential terms I consider his Honour was correct in concluding he had jurisdiction to determine the matter, and the unfairness he found was manifest. The Commission is required to act according to equity, good conscience and the substantial merits of the case (s 163(1)(c) of the Act). In circumstances where I consider there was no error as to jurisdiction and that Hungerford J's findings of unfairness were correct, it would be inconsistent with the obligations under the Act for me to adopt the views of the majority in the Court of Appeal given the operation of s 179 and in circumstances where the Court of Appeal acknowledged there was no obligation on the Commission to do so.
Mr Moses would have me adopt a similar approach in the present proceedings. That is, find that the Full Bench in Nash No 6 was wrong and, therefore, unable to provide any assistance in resolving the questions put to it in the stated case. However, the circumstances in Mitchforce were quite different to those that exist here. As the majority stated in Mitchforce, the ratio of the decision of the Court of Appeal was that s 179 of the IR Act operated so as to largely deny prerogative relief and that the Court of Appeal's comments on the jurisdictional limitation in s 106 were "purely obiter."
Here, the defendants are proposing that I should not follow the ratio of the case decided by the Full Bench in Nash No 6. I do not think that course is open to me.
Senior counsel for the defendant referred me to the decision of Lindgren J in Undershaft (No 1) Ltd v Federal Commissioner of Taxation [2009] FCA 41; (2009) 175 FCR 150 where his Honour stated at [70]:
[70] First, I must embark on my own independent consideration of the issues for decision with a view to reaching my own independent conclusion on them. The oath of judicial office requires me to do no less. If my own conclusion, independently reached, is consistent with his Honour's, there is no scope for his decision to influence me beyond "fortifying" me in my conclusion.
However, his Honour's remarks were made in the context of judicial comity vis a vis another single judge of the Federal Court and not in the context of the doctrine of precedence. This is evident from the two paragraphs preceding [70]:
[68] The notion of judicial comity raises interesting questions. I am not bound to follow Edmonds J in Virgin Holdings, it being a decision of co-ordinate authority. However, the answers to the following questions are not so obvious. In what circumstances, if at all, am I bound to accord influence to his Honour's decision? Am I bound independently to reach my own conclusion? If so, and my conclusion does not accord with that of his Honour, by reference to what principles, if at all, am I at liberty to discard my own conclusion in favour of his Honour's?
[69] Before referring to the authorities, I will state my understanding of the role of considerations of judicial comity by reference to the task confronting me.
In addition to the doctrine of precedence is the purpose of s 5AE of the CA Act. That purpose was stated by Simpson J in Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd [2004] NSWCCA 439; (2004) 137 LGERA 289 at [36]:
As with s 5B (see the passage from Madden earlier quoted) s 5AE is designed to facilitate the giving of advice by this Court to a first instance judge in order to enable the proper resolution of the issues in the proceedings. It arises where proceedings are still on foot and enables the proper and just determination of those proceedings, according to law, and in the correct application of the law. S 5AE is expressed to apply to proceedings that have not come to an end, and which may, therefore, themselves be resolved by the determination of the questions of law....
Likewise, in Inspector Wolf v Rockdale Beef Pty Ltd [2006] NSWIRComm 280; (2006) 155 IR 36 at [50] the Full Bench stated:
[50] Similarly, in the present proceedings, s 5AE was intended to provide the opportunity for Schmidt J to obtain advice from the Full Bench of the Court upon questions of law that would assist her Honour in determining the question of whether the charge under s 10 could be laid in the alternative....
As the Full Bench observed in Rockdale Beef also at [50]:
The Court does not have jurisdiction under the combined operation of s 196 of the Industrial Relations Act and s 5F of the Criminal Appeal Act to hear and determine an appeal against an interlocutory judgment or order made in proceedings to which s 168 of the Industrial Relations Act applies: Morrison v Joy Manufacturing Co Pty Ltd (2004) 137 IR 8 at [68]. Section 5AE, in the circumstances of the present proceedings, does not provide an alternative means to s 5F for the prosecution to appeal.
In the absence of an appeal being available from my decision in Nash No 4 and Nash No 5 the alternative relief available to the Department and the prosecutor was a stated case. However, a stated case has been described as "a limited form of appeal": Talay at [12]. In Director General, Department of Trade and Investment, Regional Infrastructure and Services v Glennies Creek Coal Management Pty Ltd, Basten JA described the stated case in the present proceedings as "a form of interlocutory appeal against the disclosure rulings":
[8] The appellants then requested the trial judge to submit a number of questions of law to a Full Bench of the Industrial Court, being a form of interlocutory appeal against the disclosure rulings. The trial judge was required to submit any question of law "arising at or in reference to" the proceedings: s 5AE of the Criminal Appeal Act 1912 (NSW), as applied to prosecutions in the Court by the Industrial Relations Act 1996 (NSW), s 196.
If a stated case is to be regarded as "a form of interlocutory appeal" and on that "appeal" the Full Bench determines the judge at first instance was wrong, it does not seem to me that it was the legislature's intention that the first instance judge was at liberty to take or leave the Full Bench decision based on the notion the judge did not consider the decision assisted in determining the question of law because the Full Bench was wrong. Section 5AE of the CA Act provides that "...the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination."
If the Court of Criminal Appeal (or in this case the Full Bench of the Industrial Court) determines the question of law in the context of a form of interlocutory appeal, it seems to me the legislature's intention was that the doctrine of precedence would apply and the judge at first instance would follow the determination as the judge would in respect of any substantive appeal.
In light of the foregoing analysis, which leads me to conclude I am bound to apply the Full Bench's answers to my orders in Nash No 2, there is no utility in addressing the defendants' arguments regarding the asserted errors in the Full Bench's reasons and, indeed, it is probably not proper to do so.
There remains the question of what to do about the 11 documents identified by the Department and whether they have public interest immunity - that is, whether they are to be disclosed or not disclosed. At [129]-[130] the Full Bench in Nash No 6 stated:
[129] We have found that Boland J fell into error by reason of the finding that the documentation was "important" and "crucial" in the proceedings which was made before the documentation was inspected. Question (iii) should be answered, "yes".
[130] Given our findings in relation to Question (iii), it becomes unnecessary to consider Question (iv). Question (v) we have found is not a question of law because it would have required us, in effect, to inspect the documentation and make our own findings as to whether the documents could be said to have been "crucial" to the proceedings. Such an exercise would have involved a descent into the facts, something which is not permitted under s 5AE of the CA Act which does not confer jurisdiction on the Full Bench to decide questions of fact: Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 65 IR 7 at [131]; see also Attorney-General v X per Spigelman CJ at [44].
I have inspected each of the 11 documents. However, given events that have occurred I could not now conclude that any one of the documents is crucial or at least important for, the proper determination of the proceedings. It will be recalled that the defendants were interested in discovering information relating to the appointment of Mr Regan and in that respect why it was necessary to seek to retrospectively validate his appointment as chief inspector. The defendants believed this information could be found in documents over which the Department claimed public interest immunity.
The documents in respect of which immunity was claimed referred to "concerns" about the appointment and the purpose of the amendment in the Petroleum (Onshore) Amendment Bill 2013. However, it appears that amendments in relation to inspectorial appointments that were proposed as part of the Petroleum (Onshore) Amendment Bill 2013 were extracted from that Bill and incorporated into a separate bill, the Coal Mine Health and Safety Amendment (Validation) Bill 2013. In the second reading speech by the Honourable Chris Hartcher, then Minister for Resources and Energy, Special Minister of State, and Minister for the Central Coast on 30 October 2013 in relation to that Bill, the Minister stated (Hansard, LA, 25059):
The Coal Mine Health and Safety Amendment (Validation) Bill 2013 confirms that certain appointments made under the Coal Mine Health and Safety Act 2002 are valid. In doing so, it will ensure that the clear intent of the Act is implemented. The Coal Mine Health and Safety Act 2002 is an important part of the work health and safety laws that regulate health, safety and the welfare of employees at coal operations and related workplaces. The bill provides for a significant safety compliance and enforcement regime and for the appointment of government officials to undertake certain roles. These officials include inspectors, mine safety officers, the chief inspector and investigators.
For all the talk of the mining boom being over, New South Wales still has a substantial coalmining industry. The industry employs thousands of people regionally, contributes well over $1 billion each year in royalties to the State, and contributes to local infrastructure in many different ways. Tragically, it is also an industry in which injury and death still occur. We can be thankful that there are not as many of these events as there were in the past. While this change is due in part to industry changing its approach to safety management, it is also due to the tireless work of the inspectorate and mine safety officers. I emphasise that the bill does not change any of the legislative provisions relating to these officials. Its intent is simply to remove any uncertainty about the appointment of certain government officials under the Act.In 2006, the then deputy director general of Mineral Resources appointed the chief inspector and a number of other inspectors and investigators under the Act, under delegation. As there may be some irregularity with the instrument of delegation, those appointments are now being retrospectively validated. This is to provide certainty that, to the extent any approvals, orders or directions were issued or other actions were initiated by the chief inspector and the other statutory positions in reliance on this appointment, those approvals, orders, directions or any other actions are valid. Importantly, it also means that any compliance and enforcement actions can continue without question. The bill also addresses the 2012 instrument of appointment. That instrument was designed to ensure certainty for the appointments made in 2006. However, it appears that, in addition to reappointing the 2006 government officials, this instrument inadvertently revoked all previous appointments. This bill will make certain that the unintended effect of the 2012 instrument is given its correct effect; that is, to confirm the appointment of all the government officials under the Act.
The bill moved through both Houses unopposed. The bill was assented to on 31 October 2013. The bill amended the Coal Mine Health and Safety Act 2002 by inserting s 24A as follows:
24A Validation
(1) The appointment of a person as the Chief Inspector, an inspector, a mine safety officer or an investigator by the 2006 instrument is taken to be valid (and to have always been valid).
(2) The appointment is taken to have had effect on and from the commencement of section 145.
(3) The revocation of appointments of officers (other than officers appointed under the 2006 instrument) by the 2012 instrument has no effect and is taken never to have had effect.
(4) The following things are taken to be valid (and to have always been valid) if they would have been valid had this clause been in force when they were done or omitted:
(a) anything purported to have been done or omitted to have been done by a validated officer in the capacity of an officer,
(b) anything done or omitted to be done by any other person or a court or other body in reliance on, or as a consequence of, any such act or omission by a validated officer.
(5) To remove doubt, this clause extends to the commencement or institution of criminal proceedings (including the purported commencement or institution of criminal proceedings) and any act or omission in connection with criminal proceedings.
(6) This clause does not affect any decision made by a court before the commencement of this clause, except as provided by subclause (7).
(7) A decision of a court made before the commencement of this clause that would have been validly made had this clause been in force when the decision was made (and that would otherwise not have been valid) is validated.
(8) Nothing in this clause operates to continue or otherwise restore the appointment of a person who ceased to be an officer other than in connection with the 2006 instrument or the 2012 instrument.
(9) In this clause:
2006 instrument means the instrument of appointment under the Coal Mine Health and Safety Act 2002, dated 22 December 2006, published in Gazette No 5 of 12 January 2007 at page 102.
2012 instrument means the instrument of appointment under the Coal Mine Health and Safety Act 2002, dated 18 September 2012, published in Gazette No 105 of 5 October 2012 at page 4295. officer means the Chief Inspector, an inspector, a mine safety officer or an investigator.Schedule 1 Amendment of Acts
validated officer means:(a) a person whose appointment as an officer is validated under
subclause (1), or(b) a person whose appointment as an officer is saved under subclause (3).
In light of the above, no purpose would be served by disclosing the information in respect of which the Department claims public interest immunity.
It follows that I propose to act in accordance with the answers provided by the Full Bench to the stated case. The parties will be directed to provide short minutes of order to reflect the answers provided by the Full Bench as to their effect on my orders in Nash No 2.
Costs
The Department and the prosecutor each seek an order for their costs in respect of Nash No 2, Nash No 4 and Nash No 5 on the basis that the questions have been answered in the Department's favour and that costs should follow the event. The Department and the prosecutor also seek costs of the present proceedings.
I propose to provide the parties with a further opportunity to address the question of costs in the light of this judgment.
Directions
The Court makes the following directions:
(1)The parties have seven days from the date of this judgment in which to file short minutes of order reflecting the effect of this judgment on my orders in Nash No 2.
(2)The defendants shall file and serve written submissions on costs within seven days of the date of this judgment. The Department and the prosecutor have a further seven days in which to reply. Unless a party wishes to be heard orally the question of costs will be dealt with on the papers.
**********
2
32
7